Opinion
D041658.
7-24-2003
In re VICTORIA G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALEX G., Defendant and Appellant.
Alex G. appeals a judgment under Welfare and Institutions Code section 366.26 establishing guardianship as the permanent plan for his minor daughter Victoria G. Alex contends the court: (1) violated his due process rights by delegating to the San Diego County Health and Human Services Agency (Agency) the duty to determine visitation; (2) violated his due process rights by failing to address visitation as part of the guardianship order; and (3) abused its discretion by issuing a visitation order that delegated control over visitation to the guardians. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2001, Agency filed a petition in the juvenile court on behalf of three-year-old Victoria alleging her parents, Alex and Bianca G., abused heroin and marijuana, making them unable to provide regular care for Victoria. ( § 300, subd. (b).) The petition further alleged Victoria was left with no provision for support because her parents were incarcerated for drug related offenses. ( § 300, subd. (g).) At a detention hearing, the court found Alex was a presumed father, detained Victoria out of home and ordered supervised visitation with contact visits at the prisons in the discretion of the social worker, "IF IT IS NOT DETRIMENTAL OR DOES NOT CAUSE [UNDUE] STRESS FOR [VICTORIA.]" The court also authorized funds for the parents to make collect telephone calls to Victoria.
At the jurisdiction and disposition hearings, the court sustained the allegations of the petition under section 300, subdivision (b), declared Victoria a dependent, removed her from her parents care and ordered reunification services for the parents. The court gave Agency discretion to place Victoria with a relative.
According to a six-month review report, Victoria was placed with her maternal great-grandmother. Alex was in prison and had a period of administrative confinement. He had not participated in services and telephoned Victoria twice. The social worker noted Victoria had "stranger anxiety." He believed visits with Alex in prison would increase Victorias fears and thus would be detrimental to her. At the six-month review hearing, the court found reasonable services had been provided or offered to the parents and continued Victoria as a dependent in out of home placement.
By the 12-month review hearing, Alex was still in prison and was not participating in services. Victoria did not visit Alex because he was in solitary confinement and Victoria was highly anxious around strangers. The maternal great-grandmother was providing good care for Victoria. The social worker recommended terminating reunification services and setting a section 366.26 selection and implementation hearing.
At a contested 12-month review hearing, the social worker testified Alex did not request visits with Victoria during the past six months but did telephone her three times. Although Alex wanted to see Victoria, he contemplated the effect visits would have on her. Alex was not eligible for contact visits and would be handcuffed and shackled for visits, which would occur through a glass partition. The social worker decided against taking Victoria to see Alex under these circumstances because it would place undue stress on her.
The maternal great-grandmother testified Alex telephoned four times since Victoria was placed with her. She believed visits with Alex would be detrimental to Victoria because she had little self-esteem, was frightened at night and woke up after having nightmares, did not like loud noises, had a short attention span and was clingy and needy. Victoria did not ask to visit Alex and never spoke about him.
After considering the evidence and hearing argument of counsel, the court continued Victoria as a dependent in relative placement. The court found reasonable services had been offered or provided to the parents, terminated reunification services and set a section 366.26 selection and implementation hearing.
Alex filed a notice of intent to file a writ petition. However, because his counsel found there were no viable issues for writ review, no writ petition was filed.
In an assessment report, the social worker noted Alex had no visits with Victoria because of his incarceration and solitary confinement. Victoria was flourishing in her placement with the maternal great-grandparents. Although Victoria was adoptable, she had a significant, positive emotional attachment to Bianca and thus the social worker believed terminating parental rights would be detrimental to Victoria. The social worker recommended the maternal great-grandparents be appointed legal guardians for Victoria. She also recommended the parents have reasonable visitation with the time, place, manner, frequency and length of visits to be determined by the guardians in Victorias best interests.
At the selection and implementation hearing, the court ordered guardianship as Victorias permanent plan and appointed her maternal great-grandparents as her guardians. The court terminated its dependency jurisdiction and ordered the parents "to have reasonable visitation with the time, place, manner, frequency, and length of visitation to be determined by the guardian(s) in the best interest of the child."
DISCUSSION
I
Alex contends the court abused its discretion in making its visitation order at the detention hearing. He asserts his due process rights were violated because the court delegated its duty to the social worker to determine whether visits would occur, resulting in no visitation throughout the dependency proceedings.
Failure to file a timely notice of appeal deprives the appellate court of jurisdiction to consider an issue on appeal. (Adoption of Alexander S . (1988) 44 Cal.3d 857, 864, 245 Cal. Rptr. 1, 750 P.2d 778; In re Pedro N. (1995) 35 Cal.App.4th 183, 190.) A disposition or postdisposition order that has not been appealed is final and binding and may not be attacked on appeal from a judgment terminating parental rights. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150; Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26.) Permitting a parent to raise issues that challenge the validity of a final earlier appealable order directly undermines "dominant concerns of finality and reasonable expedition." (In re Meranda P., supra , 56 Cal.App.4th at p. 1152.)
Here, the court made its initial visitation order at the detention hearing in July 2001. At the disposition hearings the next month, the court ordered its prior orders to remain in full force and effect. Alex did not appeal those orders and the time for doing so has long since passed. Further, the lack of visitation could have been, but was not, challenged in a writ petition under California Rules of Court, rule 39.1B. The courts findings and visitation order are now final and not subject to our review in this appeal. (See In re Daniel K. (1998) 61 Cal.App.4th 661, 667.)
The dispositional order is the first appealable order in the dependency process. (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.)
II
Alex contends the court erred in delegating the right to control visitation to the guardians. County Counsel asserts Alex waived his right to challenge the visitation order by not objecting in the trial court.
As a general rule, a parents failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) The waiver rule is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (In re Riva M. (1990) 235 Cal. App. 3d 403, 412, 286 Cal. Rptr. 592.) "If the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. In such circumstances, the courts have not permitted the silent parent to argue that the juvenile court erred in not being psychic." (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) Failure to enforce the waiver rule is manifestly unfair to the adverse party and the court because it would permit a parent to deliberately remain silent and permit the proceedings to reach a conclusion in which the parent could acquiesce if favorable and avoid if unfavorable. (In re Riva M., supra, 235 Cal. App. 3d at p. 412.)
Here, the report prepared for the selection and implementation hearing, made available to the parties, contained a provision for visitation: "that the parents have reasonable visitation with the time, place, manner, frequency, and length of visitation to be determined by the guardians in the best interest of the child." At the selection and implementation hearing, counsel for Alex did not object to the proposed visitation order as an improper delegation of the courts authority. By his silence and acquiescence, Alex has waived his right to claim error on appeal. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)
III
In an effort to avoid the waiver rule, Alex contends: (1) the court violated his due process rights when it did not address visitation as part of the guardianship order; and (2) the issue is one of statutory construction and thus is reviewable for the first time on appeal.
The court has a duty to make an order for visitation where a minors permanent plan is long-term foster care or guardianship unless the court finds visitation would be detrimental to the minors physical or emotional well-being. ( § 366.26, subd. (c)(4).) In selecting guardianship as Victorias permanent plan, the court made a specific order for visitation: "The parents are to have reasonable visitation." Contrary to Alexs suggestion, the court did not give the guardians discretion to decide whether visits would occur. Because the order defined Alexs right to visit Victoria, there was no interference with his fundamental right to associate with his child, and thus no due process issue is presented.
Further, because the court made a visitation order, no statutory construction is required. (Cf. In re Jasmine P. (2001) 91 Cal.App.4th 617, 621 [principles of statutory construction applied to determine whether visitation order is required only when minor is placed in long-term foster care].) Nor are we presented with a question of law. (Cf. In re Kristin W. (1990) 222 Cal. App. 3d 234, 256, 271 Cal. Rptr. 629 [question of law raised where court made no visitation order].) Alexs challenge is to the appropriateness and adequacy of the visitation order made at the selection and implementation hearing. Thus, due process is not implicated and no statutory interpretation is required.
IV
Even if Alex can now challenge the visitation order, there was no error. A visitation order must specify whether visitation will occur. (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164; In re Jennifer G. (1990) 221 Cal. App. 3d 752, 756, 270 Cal. Rptr. 326.) Although the court may not delegate this fundamental judicial decision, it may delegate decisions such as the time, place and manner of visitation. (In re Jennifer G., supra, 221 Cal. App. 3d at p. 757.) The ministerial tasks of overseeing the right to visits, as defined by the court, can and should be delegated to the persons or entity best able to perform them. (Ibid .)
The issue of whether the court may delegate to the guardians decisions regarding visitation is presently on review in the Supreme Court. (In re S. B. (2002) 103 Cal.App.4th 739, review granted Jan. 22, 2003, S112260; In re J. H. (2003) 108 Cal.App.4th 616, review granted June 16, 2003, S116644.)
Here, the courts order expressly provides for Alex to have reasonable visitation with Victoria. Nevertheless, Alex contends the order was improper because it did not specify the frequency and length of visits and thus delegated all authority over visitation to the guardians. However, only when the court abdicates its duty to determine whether any visitation will occur does it improperly delegate its authority. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009.) No such improper delegation occurred here.
Moreover, a visitation order need not specify the frequency and length of visits. In the context of guardianship, visitation arrangements "demand flexibility." (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376.) Once guardianship is established and the courts jurisdiction is terminated, the guardians have great autonomy in making decisions for the child because they are vested with the childs care, custody and control. (Guardianship of Zachary H . (1999) 73 Cal.App.4th 51, 61.) The guardians, who statutorily act in the role of parents, are best equipped to exercise discretion as to the details of visitation between the child and his or her biological parents. A visitation order that specifies time, place, manner and frequency of visits ignores the realities of child-rearing and may well impede the childs stability and deter a caretakers commitment to providing the child with security and permanence.
Further, termination of dependency jurisdiction does not place the guardians beyond the control of the juvenile court, which continues to have the authority to regulate the care of the minor through its jurisdiction over the guardianship. ( § 366.4; Cal. Rules of Court, rule 1466(c); In re Twighla T. (1992) 4 Cal.App.4th 799, 806.) Any concerns about or problems with a guardians management of visitation can be addressed in the juvenile court. (Guardianship of Zachary H., supra, 73 Cal.App.4th at p. 61; Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1431.) Thus, the court here did not impermissibly delegate its authority to allow the guardians to use their discretion in assuring the frequency and length of visits with Alex are in Victorias best interests.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.